Recount wrapping up. Then what?

Winner could be named next week, but fight might continue in court

The Great Minnesota Recount of 2008 — make that 2009 — enters its final throes this morning as counting of the last few hundred votes begins before an apparent winner is named early next week.

With a court-imposed deadline looming, 953 mistakenly rejected absentee ballots will be removed from a guarded room at a state office building and counted. The five-member state canvassing board later will tally the votes and determine whether Republican Sen. Norm Coleman — whose six-year term officially ends at noon today — or DFL challenger Al Franken is Minnesota's next U.S. senator.

"We're going to have to get busy and get 'er done in order to meet the court's order," said Secretary of State Mark Ritchie, who heads the board.

While Franken holds a 49-vote edge heading into this weekend's final counting, there was a flurry of late activity Friday that indicated the recount, much like a holiday guest who refuses to leave, could stick around for a while.

First, the Minnesota Supreme Court asked for information from several counties on absentee ballots that are not being included in the recount. The move indicates that the court is at least weighing an issue raised by the Coleman campaign in a New Year's Eve petition to the court.

Second, Sen. John Cornyn, R-Texas, signaled that any effort to seat someone in the Senate — even provisionally — before a final resolution of the election would be met with a fierce fight.

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Cornyn heads the National Republican Senatorial Committee, and he warned that the reputation of the Senate is at stake should Demo-crats attempt to seat Franken prematurely.

Third, and perhaps most important, a top lawyer for the Coleman campaign spoke openly Friday about hauling the entire matter into court for a second recount, something allowed under Minnesota law and a development that would add weeks to the process.

"The system is broken," said the lawyer, Fritz Knaak, of the tallying of mistakenly rejected absentee ballots.

Knaak repeated past complaints about duplicated ballots that allegedly have been counted twice, 133 ballots from a Minneapolis precinct that were included in the recount even though they are presumed lost after being counted on Election Day, and alleged inconsistencies from county to county in deciding which mistakenly rejected absentee ballots to forward to the canvassing board for consideration.

On Dec. 18, the Supreme Court ordered the Franken and Coleman campaigns to confer with local and state elections officials on whether to count as many as 1,350 mistakenly rejected absentee ballots statewide. The court set a Sunday deadline to finish counting those ballots, which now number 953.

That process is nearing completion, despite the court's unusual decision to effectively give each campaign veto power over the ballots — if the two sides don't agree a ballot should be counted, it is not included in the recount. Gov. Tim Pawlenty even questioned the process Friday on his weekly radio show.

"It's gone very smoothly, given what we feared," Ritchie said.

The board will meet Monday to go over any challenges to those ballots, and Ritchie said the board could dispense with as many as 150 during that meeting. If needed, the board will reconvene Tuesday to finish resolving challenges.

A winner then will be clear — unless the Supreme Court orders additional ballots to be included, as the Coleman campaign is seeking. It says about 650 ballots should have been included in the stack of mistakenly rejected votes but have not been.

The court has not said whether it would take up the matter.

Ritchie said the board has been careful in its proceedings, and he predicted the loser of the recount would have little reason to sue.

"I firmly believe that this has been done so well that the notion of a long, drawn-out contest, in my mind, doesn't seem likely," Ritchie said.

But Edward Foley, an elections law expert at Ohio State University, said that prospect is not out of the question. He said issues such as the lost ballots from a Minneapolis precinct or the alleged duplicate ballots have never been ruled on by a judge.

Foley also said an apparent winner would have significant consequences in the race, legally — the loser would have the burden of proof in any election contest — and in the court of public opinion.

"There's no question that in the public's mind (a court contest) becomes the losing candidate's effort to have the results overturned," Foley said.

Under Minnesota law, once the state canvassing board certifies results, the loser has seven days to file a court contest. On Friday, Cornyn warned against seating Franken before that process — should it come to that — plays out.

"I think it's very clear that the people of Minnesota and the courts of Minnesota should make the decision about who won the Minnesota (Senate) election and not political leaders in (Washington) D.C.," Cornyn said.

Under state law, an official certificate of election cannot be issued until a court contest is resolved. Steve Huefner, an Ohio State law professor and a former Senate legal counsel, said the provisional seating of senators is legal and not unprecedented.

However, he added, "I don't think they've ever seated someone without a certificate."

A Franken campaign spokesman said the candidate had no opinion on the matter.

Cornyn issued his warning after Sen. Amy Klobuchar, D-Minn., raised the possibility of seating a provisional senator to ensure Minnesota has two representatives in the Senate.